Madras High Court
Singaravelan vs The State on 3 November, 2022
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.O.P.(MD)Nos.16327 & 19045 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
CRL.O.P.(MD)Nos.16327 & 19045 of 2018
and
CRL.M.P.(MD)Nos.7244, 7245, 8504 & 8505 of 2018
1.Singaravelan
2.Easwaran
3.Velayutham Pillai
4.Karuppiah Pillai
5.Ramaraj
6.Palanichamy
7.Jeyamurugan
8.Karuppiah
9.Meenakshisundaram
10.Balamurugan
11.Thangam
12.Jothivel
13.Murugan
14.Nagaraj
15.N.Rajathi
...Petitioners in CRL.O.P.(MD)No.16327 of 2018
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
Muthumani ...Petitioner in CRL.O.P.(MD)No.19045 of 2018
Vs.
1.The State, rep. by
The Sub-Inspector of Police,
District Crime Branch, (ALGSC),
Theni,
Theni District.
2.Thavamani ... Respondents in both Crl.O.Ps.
COMMON PRAYER : Criminal Original Petitions filed under Section
482 of Cr.P.C., to call for the records in respect of the proceedings in
C.C.No.13 of 2016 on the file of the Judicial Magistrate cum the Special
Court for Land Grabbing cases, Theni, and quash the same as against
these petitioners as illegal.
For Petitioners in
CRL.O.P.(MD)No.16327 of 2018 : Mr.N.Anantha Padmanaban
for M/s.APN Law Associates
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
For Petitioner in
CRL.O.P.(MD)No.19045 of 2018: Mr.SP.Vijay Nivas
For Respondents : Mr.K.Sanjai Gandhi - for R1
Government Advocate (Crl. side)
: Mrs.S.Ragaventhree - R2
(in both Crl.O.Ps.)
COMMON ORDER
These petitions have been filed by A1 to A9, A11 to A16 and A17 seeking to quash the proceedings pending on the file of the Judicial Magistrate-cum-the Special Court for Land Grabbing Cases, Theni, in C.C.No.13 of 2016.
2. The second respondent / de-facto complainant gave a complaint to the first respondent to the effect that the land in old survey No.441/3 and new survey No.441/3C at Aundipatti Village, totally comprised of 84 cents and the same was sub-divided and an extent of about 11 cents belongs to the father of the de-facto complainant namely, 3/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 Paramasivam Pillai. The further case of the second respondent is that Paramasivam Pillai had four sons and the elder son Sakthivel expired and yet another son Selvaraj executed a release deed, dated 09.11.1981 in favour of other family members and the de-facto complainant has also executed a release deed on 17.02.1983 and relinquished his rights in favour of family members. Thereafter, a family arrangement was entered into between the family members on 13.02.1997 and some of the properties were sold.
3.The grievance of the de-facto complainant is that the share of the de-facto complainant was also sold without his consent and the brother of the de-facto complainant namely, Singaravelan along with other legal heirs created a power of attorney deed and alienated the property to various persons (A13 to A17). Thus the crux of the allegations made by the second respondent is that the entire property has been grabbed by the accused persons by creating false documents and by cheating the de-facto complainant. When the de-facto complainant questioned about the same, he was also criminally intimidated by the accused persons.
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4. Based on the complaint given by the second respondent, an FIR came to be registered in Crime No.51 of 2013 by the first respondent police. The investigation was taken up and a final report was filed before the Court below for offence under Sections 120-B, 420, 423, 465, 468, 471, and 506(i) IPC as against 17 accused persons.
Aggrieved by the same, A1 to A9, A11 to A16 and A17 have approached this Court.
5. Heard Mr.N.Anantha Padmanaban, learned counsel appearing for the petitioners in CRL.O.P.(MD)No.16327 of 2018, Mr.SP.Vijay Nivas, learned counsel appearing for the petitioner in CRL.O.P.(MD)No.19045 of 2018, Mr.K.Sanjai Gandhi, learned Government Advocate (Crl. side) appearing for the first respondent and Mrs.S.Ragaventhree, learned counsel appearing for the second respondent in both the cases.
6. The main crux of the argument on the side of the petitioners is that even if the allegations made in the final report are 5/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 taken as it is, no offence of forgery or creation of false document has been made out in this case. It was submitted that the defacto complainant had already executed a release deed as early as in the year 1983 and he had no right to even lodge a complaint in this case. That apart, even assuming that the de-facto complainant has any semblance of right over the property, he should only agitate his right before the competent civil Court and the criminal law cannot be set in motion.
7. The learned Government Advocate appearing on behalf of the first respondent submitted that the property in question was originally an ancestral property and the de-facto complainant was also entitled for a share in the property and already a patta was issued in favour of the father of the second respondent in patta No.1729 for survey No.441/3C measuring an extent of 11 cents. While-so, the accused persons had conspired and had dealt with the property belonging to the second respondent and had created false documents. Hence, the act of the accused persons clearly amounts to grabbing the property belonging to the de-facto complainant and consequently, a prima facie case has been made out. The learned Government Advocate submitted that the inter se 6/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 rights between the parties cannot be gone into in these criminal original petitions and hence, sought for dismissal of these petitions.
8. The learned counsel appearing on behalf of the de-facto complainant, apart from adopting the submissions made by the learned Government Advocate, submitted that as per the family arrangement that was made on 13.02.1997, the second respondent also had a share and the same was accepted by the others and while so, the share belonging to the de-facto complainant cannot be dealt with by the other family members.
Since the share of the second respondent has also been dealt with, it clearly amounts to creation of false documents and the second respondent has been cheated and when the same was questioned by the second respondent, he was abused and was threatened. In view of the same, the learned counsel submitted that a prima facie case has been made out and that there is no ground to quash the proceedings.
9. This Court has carefully considered the submissions made on either side and the materials available on record.
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10. The main ground that has to be considered by this Court is as to whether based on the allegations made in the final report, whether an offence of forgery has been made out in this case. The allegations with regard to the offence of forgery is based on the documents that were created in favour of A13 to A17, which are termed to be false documents by the second respondent. It must be borne in mind that if there is no creation of false document, then automatically the offence of forgery must fall. This issue is no longer res integra and it has been substantially dealt with by the Apex Court in Mohammed Ibrahim and others Vs. State of Bihar and another reported in 2009 (8) Supreme Court Cases
- 751. The relevant portions in the judgment are extracted hereunder :
"14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other 8/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 person, by whom or by whose authority he knows it was not made or executed.
2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind;
or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
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15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually 10/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted."
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11. It will also be relevant to take note of the judgment of the Apex Court in Sheila Sebastian Vs. R.Jawaharaj and another reported in 2018 (7) Supreme Court Cases - 581. The relevant portions in the judgment are extracted hereunder :-
"21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that- (SCC P.756, para 14) "14.....a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses.”
22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as 12/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed that: (SCC P.757, Paras 16-17) “16.....There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property.
But to fall under first category of `false 13/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
24. In Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to 14/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 observe as follows: (SCC P.687, Para 164) “164.A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made.
Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a 15/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26. The definition of “false document” is a part of the definition of “forgery”. Both must be 16/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 read together. ‘Forgery’ and ‘Fraud’ are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that ‘false document’. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same."
12. It is clear from the above judgments that in order to constitute the offence of creation of false documents, it must be established that the accused persons had made or executed a document claiming to be someone else or he was authorized by someone else (in 17/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 short impersonation) or he altered or tampered with a document (forgery) or he obtained the document by practicing deception, or from a person, who is not in a control of his senses.
13. In the present case, the only ground that has been claimed by the de-facto complainant is that he has a share in the property as per the family arrangement and his share has also been dealt with by the accused persons. This allegation will not by any stretch fall within the requirement of a "false document". If there is no false document as defined under Section 464 of IPC, the offences under Sections 467, 471 are not made out.
14. Insofar as the offence of cheating is concerned, it is more a fall out of the primary allegation that the accused persons have indulged in the act of forgery. In other-words, it is a consequence of the primary allegation that has been made against the accused persons. If at all the second respondent has any share in the property and the same has been dealt with and there is a dispute with regard to the very claim made by the second respondent, the proper forum for the second respondent to 18/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 agitate his grievance is only before the competent civil Court and Criminal Law cannot be set in motion. The allegations that have been made in the final report even if it is taken as it is, does not constitute an offence of cheating.
15. Insofar as the offence of criminal conspiracy is concerned, since this Court has found that there is no offence of forgery or cheating, the offence of criminal conspiracy must also automatically fall.
16. Insofar as the offence of criminal intimidation is concerned, apart from the oral threat said to have been made by the accused persons, there is nothing more even from the materials available on record.
17. This Court in P.Palanivel Vs. The Inspector of Police, Velur Police Station, Namakkal District, reported in 2012 (2) MLJ (Crl.) - 154 has held that mere empty threats by itself will not make out an offence of criminal intimidation unless there is an evidence to show 19/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 that the threat is a real one. This position of law was once again reiterated by the Apex Court in Vikram Johar Vs. The State of Uttar Pradesh and Others reported in 2019(3) MLJ (Crl.) - 295.
18. In view of the above discussion, this Court finds that no offence has been made out as against the accused persons and continuation of the criminal proceedings against the petitioners will amount to abuse of process of Court which requires the interference of this Court in exercise of its jurisdiction under Section 482 Cr.P.C.
19. In the result, the proceedings in C.C.No.13 of 2016 on the file of the Judicial Magistrate cum the Special Court for Land Grabbing Cases, Theni, is hereby quashed and both the Criminal Original Petitions are accordingly allowed. Consequently, connected miscellaneous petitions are also closed.
03.11.2022 Index: Yes/No Internet: Yes/No rm 20/22 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16327 & 19045 of 2018 To
1.The Judicial Magistrate-cum-
the Special Court for Land Grabbing Cases, Theni,
2.The Sub-Inspector of Police, District Crime Branch, (ALGSC), Theni, Theni District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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